Married Daughter Who Became Widowed After The Death Of The Pensioner Is Not Entitled To Family Pension: Calcutta High Court

The Calcutta High Court on Monday observed that the benefit of family pension cannot be extended to a widowed daughter of a pensioner who was married at the time of the death of her father/mother. The Court held that a daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension.

The issue in consideration before a Bench comprising Justices Harish Tandon and Rabindranath Samanta was whether a daughter of a pensioner who was married, but became widowed after the death of the pensioner is entitled to family pension.

Answering in the negative, the Court observed, 

"As the legislative intent is demonstrated, the scheme of family pension never included a daughter of a pensioner who was married at the time of the death of the pensioner..A daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension. In the absence of any legislation in this regard, the benefit of family pension cannot be extended to a daughter of a family pensioner who was married at the time of the death of her father/mother. It will be unwise on the part of this Court to exercise its extraordinary or discretionary power to come to any inference contrary to the policy decision of the Government."

Background 

In the instant case, the Union of India had challenged an order passed by the Central Administrative Tribunal, Calcutta Bench, Kolkata dated June 16, 2016 vide which the Office Memorandum dated September 18, 2014 issued by the Ministry of Personnel, P.G. & Pensions, Department Of Pension & Pensioners' Welfare, Government of India had been quashed on the ground that it is unconstitutional and opposed to public policy.

The concerned Tribunal had accordingly directed the authorities to continue disbursing family pension to one Ratna Sarkar by treating her as a dependent daughter of the deceased pensioner with arrears to be released within two months from the date of communication of the order.

The pensioner, one Nitya Gopal Das was a driver of the Eastern Railway and he retired from service on superannuation on September 10, 1980. He was a railway pensioner and died on May 19, 1985. After the death of the pensioner, his wife Namita Das was a recipient of family pension from the Eastern railway. She died on May 5, 1991. 

The widowed daughter was was married to one Hrishikesh Sarkar, but, he died untimely on August 3, 1993 i.e 2 years after the death of her pensioner mother Namita Das.

Observations 

The Court placed reliance on Rule 54 (6) of the Central Civil Services (Pension) Rules, 1972 which envisages that a daughter shall become ineligible for family pension under this sub Rule from the date she gets married. Furthermore, the Rule also stipulates that family pension payable to a son or daughter shall be stopped if he or she starts earning his/her livelihood.

"A conjoint reading of all the relevant office Memorandums of the Railways in the light of Rule 54(6) of CCS (Pension), Rules shows that it was the intention of the legislature that the benefit of family pension would be extended to an unmarried daughter till she attained the age of 25 years or until she got married whichever is earlier. Such benefit, subsequently was extended to a widowed/divorcee daughter of a pensioner beyond the age of 25 years", the Court observed. 

The Court further noted that the legislature has extended the benefit of family pension to a child/children of a family pensioner on his/her demise under different circumstances as enumerated in the relevant rule. For instance it was note that a mentally retarded child is bestowed with the legislative blessings to have family pension throughout his life after the demise of his/her parent. But, such benefit is not extended to a married daughter.

Extending family pension to a child in distress of the deceased family pensioner is a policy decision of the government, the Court stated further. However, the Court underscored that a daughter who became widowed after the demise after her father/mother does not possess any fundamental or statutory right to claim family pension.

It was held further that the clarificatory Office Memorandum dated September 18, 2014 cannot be termed as discriminatory and unconstitutional. By the concerned office Memorandum it was clarified that the family pension should discontinue in those cases where it has been sanctioned in pursuance of those office Memorandums, but without taking into consideration that the widowed/divorcee daughter was leading a married life at the time of death of her father/mother, whoever died later and was therefore ineligible for family pension. I

The Office Memorandum further clarified that it would be appropriate that in order to maintain equality before law family pension payable to such daughter should be discontinued. However, recovery of the already paid amount of the family pension would be extremely harsh on them and should not be resorted to.

"The clarificatory office Memorandum dated 18.09.2014 which manifests the very object of family pension enshrined in Rule 54(6) cannot be termed as discriminatory and ultra vires the constitution", the Court held further. 

Accordingly, the Court directed, 

"The order dated 16.06.2016 passed by the Learned Tribunal in O.A. no. 350/01194/2015 is hereby set aside. Consequently, the Tribunal application is dismissed."

Case Title: Union Of India and Others v. Ratna Sarkar

Case Citation: 2022 LiveLaw (Cal) 31

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